Читать книгу Criminal Law - Mark Thomas - Страница 78

It will be useful at this stage to return to the example given by Stephen J and adapt the facts to observe whether the requirement of A to save B is changed.

Table 2.5Adapting Stephen J’s facts

Facts: What if …	Is there a legal duty?
B was a child?
A was B’s parent or legal guardian?
A was B’s teacher out on a school field trip?
A was a qualified lifeguard at a swimming pool?
A could not swim and was scared of water?

These are all excellent questions to ask and naturally lead us on to the circumstances when a failure to act may result in criminal liability. Once we have considered the law on omissions, come back to this table and consider whether an obligation exists.

There are several established circumstances where there is a duty to act. These duties to act are often imposed by statute, by a legal contract/voluntary agreement or by a relationship. Quite simply, if there is no such duty, there can be no liability for an omission (though see below at 2.6.4.7 for a discussion of extending the duties).

Before we proceed to the established duties, it is essential that we first make clear that there are several requirements for a failure to act to give rise to criminal liability:

(a) the defendant’s offence must be capable of commission by omission;

(b) the defendant must have a legally recognised duty to act; and

(c) the defendant must have unreasonably failed to act on that duty.

The above list is quite self-explanatory, but it will be useful to delve into the conditions in greater detail.